Apparently, the answer was “yes.”
They fired me, and they convinced a Bill Clinton–appointed judge to let them withdraw from the Rochester Tea Party case.
I did not have anything better to do, so I took the case for them on my own—via the Law Offices of Roberta Klein, which consisted of my apartment in Brooklyn and a post office box for getting mail since this was before we did everything electronically. I went to work on winning the case.
Here is the little-known secret about litigation. The trial and the jury and all the trappings you see on videos—that is only a part of the game. Yes, it is important, but as theater. Nothing that ever happens in a courtroom should be a surprise. You are not there to find out new things (at least, you are not intending to—sometimes it happens). You are there to make a presentation, to put on a performance, and hope that your audience—and our audience was, in ascending order of importance, the judge, the jury, and the American people—gets the message you are communicating.
We sought to communicate a simple message—your government is doing something very wrong, and you, as an American, must put a stop to it.
The real detective work comes in discovery. That is the phase where you gather evidence. There, unlike at trial, you should be surprised all the time, because if you are not finding out new and devastating information, you are not digging deep enough.
You sometimes see videos where the lawyers talk about “fishing expeditions.” Well, discovery is a fishing expedition—and it is supposed to be one. There are very, very few limits on what you can delve into. Discovery is remarkably intrusive, but that was to our advantage. Our clients were small groups, like the Rochester Tea Party, and individuals. They did not have that much stuff to look through. But the government? It always has a lot of records and documents that might be relevant.
Discovery includes some very powerful tools. There are document requests. We would send out a list of categories of documents, like, “Provide all documents related to communications within your agency regarding, referring to, or discussing the Rochester Tea Party.” Then the bad guys would have to go through all their documents and give us everything that was responsive. We would send hundreds of requests, and they would ship us back truckloads of documents. Yes, often it was on hardcopy paper back then, and they kept a record of everything. They would usually even print out the e-mails. It is a lot easier today with everything done electronically, but their convenience was the least of our concerns.
You can send interrogatories too. Those are written questions. One might be, “Identify each individual in your organization who undertook, participated in, or recommended any administrative action regarding the Rochester Tea Party.” Then we would depose the people who were identified in response—question them under oath and in front of a court reporter—and start figuring out who coordinated the conspiracy against our client.
We would also send requests for admissions. If they admitted a request, they were bound to it. One might read, “Admit that a decision to assess an administrative penalty against the Rochester Tea Party based upon its conservative beliefs would constitute a violation of the civil rights of the Rochester Tea Party.” I would hope they would deny that—and they usually would, using some tortured interpretation of the text of the request—so that I could get up in front of the jury and tell them that these bureaucrats and their agencies had denied under oath that targeting political opponents was a civil rights violation. That would set the tone for trial nicely.
Was I concerned with them lying? Heavens, no. They always lied. But they could not help their bureaucratic nature. The proof was always there in the documents, recorded somewhere. I spent many an all-nighter pouring over boxes of government documents until I stumbled on the smoking gun I could flash up on the monitor for the jurors to catch the bureaucrats in a lie and thereby win the case.
Rochester Tea Party v. Jemima Rudolph, et al., was the first of many cases. Rudolph was the head of the state agency going after my client. Soon, I started hiring associates, other young constitutional conservatives (because by then I had figured out what I really was politically) who were eager to fight.
There had always been a few conservative or liberty-based legal groups who would sue when the government overstepped, but we were part of a wave that took it to a whole new level. It really kicked in with the suits involving Obamacare and its effect on religious and personal liberty. The progressives had nothing but contempt for people who did not agree with them, particularly religious people. They tried to use Obamacare to figuratively shove their opponents’ faces in the dirt by, for example, forcing believers to subsidize abortion-related insurance. My whole goal was to survive in the case long enough to get in front of a jury, because then we would win even if we lost.
We started calling it “conservative lawfare,” and it drove the progressives nuts. What made them so vulnerable was not only the dubious legal grounds of their actions but their manifest pettiness and unfairness. You see, lawfare—as progressives themselves used to understand—was not just about winning on the merits of a particular lawsuit. It was theater—it highlighted and put in front of the public these government actions in a way that could not be swept under the rug. You go to court, and unless you dismiss the case following a settlement, the court has to rule one way or the other. Something has to happen.
Most Americans are generally fair-minded, and they saw how essentially unfair many of these government actions were. And when the progressives doubled down—which they always did—they looked awful. It was not always a matter of winning or losing the case itself. We lost a lot of cases because Obama and Clinton had years to pack the courts with progressive judges, and many are still on the bench making mischief today even though impeaching those three Supreme Court justices during the second Marlowe administration sent a pretty clear message.
But what really mattered, what really helped the movement, was showing the injustice of progressivism. Lawfare let us do that.
* * *
Colonel Jeremy Denton, US Army (Ret.) (Insurgency Expert)
The colonel is particularly animated, pausing only to sip his black coffee as he focuses on the subject he spent his life studying—how to defeat an enemy.
Fighting a war is actually pretty simple in concept. Execution—that’s where it gets complicated, but the concept itself is really, really simple. You never want to fight fair. You want to always—always—have the advantage. Most battles are won or lost long before someone fires the first shot. It’s all about setting the stage for the battle, maneuvering yourself and your forces into the most advantageous position while simultaneously maneuvering your enemy into the least advantageous position.
We call that “shaping the battlefield.” You look for where and when you have the edge, and then you make the enemy fight you there and then. That’s especially important for insurgents. Our conservative lawyers understood that instinctively.
* * *
Dan Stringer (Billionaire CEO/Activist)
The notorious tycoon has just finished a tennis match. He is a fierce competitor and is clearly pleased that he won the match. His Ukrainian tennis coach hands him a fruit drink and a towel. He stands while he talks, leaning on the net.
I threw money at lawyers because we could win in court. We wanted to get the government and the progressives in court because that took away all their advantages. I was a big proponent of lawfare right from the beginning because I saw that was where we could draw blood.
I funded a lot of lawyers. There was a glut of them, and I could get them cheap, so I found some talented ones and created a public interest law firm. I took the write-off—we were a nonpolitical civil rights organization under the law—and my lawyers raised unholy hell with the liberals, suing every government agency and liberal institution for everything they could think of. It was great. No case was too big or too small. The government was constantly having to get up and publicly defend its nonsense. Win or lose, we won. And
what made them maddest was we stole that screenshot right out of their playbook.
I used to say that conservatives had to harness the power of lawyers for good instead of evil. The left had been using the courts for generations to chip away at our Constitution; we needed to use it to rebuild our rights and our freedoms. And, along the way, to give the progressives fits.
I learned that lawfare was not suited just to federal government issues; in fact, states often provided us an even more effective venue for litigation. I didn’t realize it before, but my lawyers showed me how the state constitutions are just packed full of civil rights that dwarf what’s in the United States Constitution. Moreover, with many states in conservative hands, we had the chance to do what the left was so good at and pass laws that empowered conservative activists to seek conservative change in the courts.
What were some good targets? Schools were great ones. There was nothing better than a lawsuit over the petty fascism of some principal who thought she was Stalin reborn. We had one who refused to have kids say the Pledge of Allegiance. Just flat-out refused. Well, many states have laws requiring the Pledge, but hers didn’t. No problem for my lawyers! We cobbled together some half-assed civil rights claim and filed. Discrimination laws are awesome!
Now, some of the lawyers didn’t get what we were doing. “Wait,” sputtered one of them, who soon found work in the workers compensation law field. “This sounds legally tenuous. What about standing? What about, well, evidence?”
Silly lawyer. This was lawfare.
We knew we weren’t necessarily trying to plead and prove a legally meritorious claim. This wasn’t about winning some money. It was about defeating our opponents in public, about humiliating and demoralizing them while getting our own side energized. We filed that lawsuit because Principal Pinko wouldn’t let Junior say the Pledge and that kid was on Hannity the very next day. The key element wasn’t the legal brief. It was the press release. This was guerrilla theater.
We exposed the principal as some sort of liberal wacko and the superintendent started getting calls from parents—which he knew as “voters”—about why one of his administrators was dissing Old Glory. He picked up the phone and pretty soon the principal was chastened and the school day began starting again with the kids with their hands on their hearts pledging allegiance. I had a camera crew go out there and film it.
By the way, we didn’t even bother to serve the lawsuit. We just cashed the settlement check and my legal team’s next case had some seed funding.
It was a virtuous circle.
Most fair-minded Americans were appalled when we showed them the kind of bigotry that, say, an evangelical Christian would have to endure at the hands of government bureaucrats or the big, liberal-leaning companies. Pretty soon, after burning their hands on the stove enough, the word got out—knock off the prejudice against these folks. We loved to get settlements that forced liberal government appointees or Democrat-funding CEOs to have to endure sensitivity training designed to cleanse them of their atheist-normative, urbano-centric biases. They became terrified of us.
That’s how we covertly enlisted government agencies and private employers to help defeat the kind of bigotry that marginalized conservatives in society. We let them do the work of battling the bigotry against us. It wasn’t just a few conservatives complaining about being treated like crap. Instead, we created a whole army of fussy human resources professionals rooting out discrimination against our people, spurred on by the desire to avoid any more lawsuits from conservative victims.
We made it expensive and inconvenient to hate us publicly. And after that, we focused on other key rights and freedoms—including ones that weren’t really set out in the text of the Constitution. The right not to have your public school kid indoctrinated, the right not to have to pay taxes to support freeloaders, the right to concealed carry of firearms. The liberals had spent decades finding useful things between the lines in the Constitution; now it was our turn. As one of my lawyers said, we made those penumbras emanate!
* * *
Michael Ambarian (Supreme Court Justice)
I barely recognize the justice when I walk into the Alexandria hamburger joint where he suggested we meet. He’s hunched over a view screen, working on what turns out to be his latest e-book, a biography of Antonin Scalia. His casual dress and calm demeanor belie his reputation as the most ferocious inquisitor on the High Court since his hero, Justice Scalia, retired in 2025 at age 89 a week after the inauguration of Carrie Marlowe. A half-empty pint of Guinness Stout rests on the table beside him. He notices me and motions for me to join him.
“What are ya drinking?” he asks.
I make it a point not to hire my clerks from the Ivy League schools. They used to produce nearly all of the law clerks for the entire federal system, and that kind of incest—oh dear, my critics will certainly jump on that slip—was very, very harmful to the health of the judiciary. You ended up with this kind of inbred groupthink that was inevitably progressive. I wouldn’t have a problem with one strain of thought or another generally dominating the judiciary, except that progressivism happens to stand in precise opposition to the most basic premises of our constitutional system.
But more than that, I like my clerks with a bit of seasoning. Life seasons you, not seven years at some eastern college mingling with people who are exactly like you in an environment that is not only artificial but prides itself on its artificiality. I have to say that one of the best things to happen in the last few decades is the collapse of academia as it was in the beginning of the century.
I was seasoned nicely, I think, as a young lawyer. I have to admit that sometimes I miss my days as an activist attorney fighting for social change through the law. [The justice smiles at his appropriation of that progressive cliché, and takes another drink of his stout.]
We were always working, always fighting. Every day the Obama administration would try something, some executive order that had no basis in law, or employ some practice designed to make an end run around the Constitution, and we’d go right at them.
It was hand-to-hand combat in the courts. We were in federal court all day, and then in the office until midnight. Good times. See, conservatives had used the law before—the Heller decision on guns was a good example—but mostly as a shield, trying to undo damage. The feds would try to impose some mandate or restriction that violated the First Amendment—they hated the First Amendment, because it created an obstacle to their dominance—and conservatives would react. But you don’t win by reacting!
So we took a page from the left, and we started using the law as a sword, not just a shield. We used it to force change in liberal bastions, but on our terms.
At first, we had to use the laws as they were. Later, as we started gaining political power, we could use new laws designed to facilitate our various campaigns. This was especially true at the state level—we’d work with conservative legislatures to pass laws like the ones expressly requiring faculty “religious diversity” and then use them against government agencies that discriminated against Christians and observant Jews. They hated that too.
We didn’t have those at first, though, so we had to use existing law in new and creative ways. What was great is that we used their own rationales against them. One of my favorite examples comes from our litigation against various universities over their hiring practices. Our goal was to help break the liberal lock on higher education using the courts, since their love of diversity stopped when one suggested that diversity of political thought might be appropriate too.
We found some rejected faculty candidates—we made sure they all had outstanding academic records, of course—and sued for “discrimination” based upon a “disparate impact” theory. We were basically saying that the lack of conservatives on a faculty was per se evidence of prejudice against conservatives. We had seen this in race and gender suits in other contexts, so we applied it to our context. It’s a very useful argument. You can’t really fight it�
�if you have 35 professors and 35 of them donated to Hillary Clinton, it’s pretty tough to argue you’ve grasped the Holy Grail of political diversity.
Now, I hate disparate impact analyses, and I think their application is facially unconstitutional. There are simply too many other factors at play to simply count beans and come to a verdict. And I unhesitatingly used disparate impact theories (and others I felt constitutionally suspect) mercilessly to defeat the progressives.
It’s not hypocrisy, though I’ve certainly heard that term misused enough in describing how my record as an attorney supposedly contradicts my record as a jurist. Hypocrisy exists when one acts in contravention of his views. My view of the law, as an individual as opposed to as an attorney, was utterly irrelevant. An attorney must, as every state bar’s regulations require, assert the interests of the client and advocate for the client using every available legal tool. The adjective for this representation that seems to reoccur often in the state codes is “zealously”—an attorney must “zealously” represent the interests of the client.
So, whether I personally thought it was a good legal theory, or bad legal theory, or an indifferent legal theory, I was obligated to assert it if it was to my client’s advantage to do so. So, I was not even remotely a hypocrite for thinking “disparate impact” and other liberal concepts were constitutionally suspect while using them to batter my opponents with them.
Of course, the progressives got clever. They would argue that political beliefs were not protected under discrimination law—basically, that “conservatives” were not a protected class. We would later get many states to pass laws expressly remedying that, but sometimes this stopped us. So we shifted—we started amending our lawsuits so that the discrimination was not merely on the basis of political views but on religion as well. We’d allege that the faculty candidate was rejected also because he was a devout Christian or an observant Jew. This had, as Kissinger might say, the added benefit of being true. Then we’d hit them with a disparate impact analysis argument on that basis. Later, we got laws specifically creating these new protected classes.
Conservative Insurgency: The Struggle to Take America Back 2009 - 2041 Page 12
